Is Federalism a Solution?

by Bhimraj M, NUJS’ International Journal of Legal Studies and Research, Vol. 7, No.1, West Bengal, March 2018

Is Federalism a Solution

West Bengal National University of Juridical Sciences Logo.pngAbstract
The change of power in 2015 and Maithripala Sirisena becoming the President of Sri Lanka is said to have sowed hopes for a political solution to the ethnic conflict. But the President has openly expressed on several occasions his intention in not compromising the unitary nature of the state and the primary
status of Buddhism, the prime reasons for the conflict, under any circumstance, in the new Constitution. This assertion by the current president reflects that Sri Lanka, the Germany of South Asia, is yet to learn a lesson from its historical mistakes. This paper analyses the effectiveness of a federal constitution as a
political solution to the ethnic conflict of Sri Lanka. The author in this paper has argued that even if Sri Lanka comes with a federal constitution, it is difficult to retain the different ethnic groups united due to the difficulties in creating a common national identity, a mandate for the unity of deeply divided ethnic societies.

7.Conclusion And Suggestions
The post-independent state-building process in Sri Lanka is said as the conflict between Sinhalese nationalism and minority ethnic groups and the Sinhalese had never made an attempt to understand the concept offederalism as a political solution.67 Neither the UN report on Accountability in Sri Lanka nor the Lessons Learnt and Reconciliation Commission(LLRC) report acknowledged the lack of federal provisions as one of the major causes of discrimination against the Tamils. The SL government is wrong to assume end of LTTE as the end of the ethnic problem and the only solution for the conflict would be drafting a constitution which is acceptable to democratic elements in all the communities.68 In the name of appeasing the Sinhalese, they must not sow the seeds for the uprising of the conflict through the new constitution.
Whether Post-conflict federalism is an effective solution to the issue of ethnic conflict? Sujith Choudhry & Nathan has contributed an academic literature dealing with this question.69  Accordingly, there are primarily two 65 conflicting views regarding the question. One view accepts that federalism dampens secessionism and the other view regards federalism as a set up perpetuating secessionism. Both arguments have equal weightage.  According to the first view, for a Post-Conflict federalism to be successful it must remedy the disadvantages suffered by the minorities; acknowledge the existence of more than one nation within the state by granting sufficient powers to the regional institutions. Whereas the second view is sounder as itis based on the experiences of the disintegration of Yugoslavia,Czechoslovakia and Russian Federation. All those countries reflect the failure of post-conflict federalism. But it is also asserted that secession depends on the nature of regional parties. In Sri Lanka, regional parties are not so powerful after the defeat of LTTE. Hence, there is no threat in adopting federal constitution. 
Sri Lanka is now in a period of Democratic TransitionFor the transition to be successful in deeply divided ethnic societies especially in the post-genocide era, David E. Kiwuwa has developed an integrative model which rests on four principles namely unity, equality, trust and institutional engineering. 70  Firstly, unity as a fundamental requisite for transition cannot be achieved without recognizing diversity and cohesion. Secondly, by equality, the author means that there must be an equal access of political resources and mechanisms like minority vetoes, concessions, compromises,reserved domains must be granted to address and manage the differences inthe society. Thirdly, according to the author, trust is premised on three things in a post-conflict deeply divided society namely, absence of perfect information, high probability of uncertainty and history of violent confrontation. Fourthly, by Institutional Engineering the author emphasizes that progress in democratisation depends on the effectiveness of the institutions as it is the only tool of communication between disparate groups. If we go by the Integrative model it is very difficult for the Sri Lankan government to create a national identity for unity and even more difficult or nearly impossible to earn trust among the Tamils. ‘Will the Tamils really trust a government which had killed its own citizens?’ is the question of pertinent importance.71
It was rightly predicted by Jayadeva Uyangoda that defeat of LTTE would make the Tamils including the political parties in a submissive position which will pressurize them to accept any solution ‘as a concession and not as a right’ .72 Post-war, the Government believes that the ‘Tamils have no other choice but to tolerate Sinhalese Buddhist dominance’.73 Presently the Tamils are not in a position to exert their right to external self-determination and are not in an equal position in the negotiation process. The claim of separate state has been smothered by the genocide. All they have is to seek a federal Constitution. But unfortunately, Sri Lanka is not ready to adopt a Federal Constitution. They are ready to preserve their unitary status even after the war without any remorse for the lost lives of the Tamils.
Even if Sri Lanka comes up with a Federal Constitution, it is difficult to create, as said earlier, a common national identity for both Sinhalese and Tamils. Therefore, the future of Sri Lankan unity is a big question and the minorities will be a major threat to Sri Lanka. Either it has to come up with a Confederation set up for a peaceful existence or must continue with its force for unity. Nevertheless, a Federal Constitution will guarantee, to some extent, the legitimate rights of the minority Tamils. As Sri Lanka is in the process of drafting its new Constitution, it shall learn from its neighbour asthe problem of minority rights was also a subject of concern while drafting the Indian Constitution. There were oppositions from few Honourable Members regarding the safeguards given to the minorities in the Draft Constitution and it is mandatory for the Sri Lankan government to have are course to Dr. Ambedkar’s idea of Constitution which is reproduced here,
‘It is wrong for the majority to deny the existence of minorities…minorities are an explosive force which, if it erupts, can blowup the whole fabric of the State. It is for the majority to realize its duty not to discriminate against minorities. Whether the minorities will continue or will vanish must depend upon this habit of the majority. The moment the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist. They will vanish.’ 

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